Hochmuth v Hyne & Son Pty Limited
[1996] QDC 49
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Hochmuth v Hyne & Son Pty Limited[1996] QDC 49
Hochmuth v Hyne & Son Pty Limited[1996] QDC 49
DISTRICT COURT | No 1842 of 1994 |
CIVIL JURISDICTION
JUDGE BOTTING
JASON SCOTT HOCHMUTH | Plaintiff |
and
HYNE & SON PTY LIMITED | Defendant |
MARYBOROUGH
DATE 25/03/96
JUDGMENT
HIS HONOUR: Gentlemen, as I indicated before it seems to me that the issues in this matter are within short compass. I have formed firm views as to the findings I should make and as to the consequences of those findings. Under those circumstances I propose to give judgment now rather than delay matters further. In doing so I shall be speaking from notes I have prepared. It may be that I do not, therefore, express myself as eloquently as I might wish to. It may also happen that I omit to make findings in respect of matters which you regard as being of some importance. If that last event should occur please do not hesitate to raise with me any misgivings you may have before final judgment is pronounced.
This matter comes to this Court from the Supreme Court and my task is to assess the damages properly payable to the plaintiff in respect of injuries suffered by him in a work related accident which occurred on 25 August 1993. The plaintiff was born on 23 November 1968 and was thus 24 and three-quarters when injured and is now a little over 27 and one-third years.
I should perhaps preface my comments by making some observations so far as the various witnesses are concerned.
I was most impressed with the plaintiff. He appeared to me to be an honest and forthright witness. He certainly did not appear to me at any time to be guilty of any exaggeration, particularly is that comment true, it seems to me, so far as the pain and suffering which he suffered and the various other sequelae of the accident the subject matter of this action are concerned.
His wife gave short evidence and I was equally impressed with her.
Two witnesses were called with respect to the employment market in the citrus growing industry, Mr Meyers and Mr Wallis. I accept both of them as being both honest and reliable witnesses.
Two further witnesses were called, one by the plaintiff and one by the defendant, relating to the future of the milling of native hardwoods in this State. The witness called by the plaintiff was a Mr Shield and that called by the defendant was Mr Forbes. Both those men, it seems to me, are very experienced and very capable men in the areas in which they practise and both obviously have a great knowledge of the industry revolving around the milling of native hardwoods in this State. Mr Shield, of course, gave, as it were, more general evidence about the state of the industry on a State-wide basis or perhaps an Australia-wide basis. Mr Forbes was perhaps more focused on the industry as it relates to his present employer, although that is, of course, not to say either that Mr Shield's evidence does not have relevance to the position of the defendant or that Mr Forbes' observations do not have wider implications.
So far as the plaintiff's personal history is concerned so far as his medical history is concerned nothing of significance has been shown.
He was born in Mundubbera and is the fourth generation of his family to live in that area. Indeed, the family have lived on a selection of about 2,000 acres which was originally made, as I understand it, by his great grandfather. Beef cattle are run on that property. The plaintiff is actually living at the moment on a 25 acre subdivision of that selection.
He was married in 1993. When he was injured he and his wife had planned to commence a family but I find that because of the accident they delayed doing so. They have now commenced their family and the plaintiff and his wife now have a five week old son.
The plaintiff was educated at schools in the Mundubbera area. He left school after finishing Grade 10. He described himself as an average student and it would seem from the material before me that his better subjects were in the manual arts. After he finished his formal schooling he commenced an apprenticeship to enter the trade of diesel mechanic. He completed that apprenticeship but apart from a few months following the conclusion of his apprenticeship has not worked in that trade. After being retrenched by his first employer he was for a short time, as I understand, unemployed and then he commenced working for the defendant company in January 1989 at its mill at Mundubbera. That mill, as I understand it, exclusively mills native hardwood timbers.
Initially he was employed stacking timber, a job that he followed for about three or four months. Then he was set to work on what was referred to as a docking saw, namely a saw which cuts timber into lengths and also is used to cut out any faults in the timber, and he performed that work for a further three or four months. He was then required to work on an instrument known as a Canadian saw which apparently is used to split logs. He was then moved to work on a bench saw. That was the position he occupied at the time he was injured. He had occupied that position for about two years prior to his injury.
The plaintiff described in his evidence the manner in which his hand was injured. I do not propose to recount it in length, suffice to say that he was required to make an adjustment to the saw. He used, as I understand, what was described as a piece of bark to test the blade. The blade caught that and his hand was drawn into the blade. The immediate result was that it appeared to him that a number of his fingers had been sliced off although they were still hanging, as I understand it, by small threads, as it were, of skin. The plaintiff described in his evidence his reaction to this accident, the immediate attention that he received, his being taken to the local doctor's surgery, from there to the local hospital, and then being flown to a hospital in Brisbane.
Again I do not propose to recount all this evidence because it seems to me that it is not contentious and is fully described in the transcript, in any event.
It will perhaps be most useful to describe his treatment by quoting from some of the various reports which have been put before me.
The first report is that of the local doctor at Mundubbera, Dr West, who says that at 10 to 9 on the day of the accident the plaintiff was admitted to the Mundubbera Hospital in a lot of pain with an extensive injury to his left hand. He said compound fractures had been suffered to such degree that prognosis was poor and he was told that he would be transferred to the Princess Alexandra Hospital. A report from that hospital is Exhibit 3 and I will quote from the body of that report.
“There was a large defect across the dorsum of the hand extending from the head of the little finger metacarpal obliquely across the MP joint of the little finger and ring finger extending across the middle phalanx of the middle finger and through the DIP joint of the index finger. There were no intact neurovascular or tendinous structures on the little finger. The ring finger had intact flexor tendons, but no neurovascular structures intact. The middle finger had no neurovascular structures intact. The index finger had the radial neurovascular bundle intact. There was extensive bone loss in each of the digits, with a fracture of the middle phalanx extending though to the PIP joint. There was minimal base of bone left on the base of the proximal phalanx of the middle finger and there were moderate skin bridges intact on all finger bases.
The wounds were compound scrubbed and the little and middle fingers were too badly damaged to replant. The damage to the ring finger was less severe than that to the middle finger, however the proximal structures on the middle finger were in reasonable condition. Therefore the ring finger was transposed to the stump of the middle finger and revascularised. The DIP joint of the index finger was fused.”
Most of the plaintiff's care following this accident was supervised by a Mr Gilpin. Numerous reports and letters written by him have been put before me and I shall read from only a few of them. The first that I intend to refer to is Exhibit 11 which is a report prepared by Mr Gilpin on 24 February 1994.
“The patient remained in hospital for roughly 5 - 7 days post operatively and his dressings were taken down and reviewed towards the end of this time. The patient was then discharged home to be followed up at the Belmont Hand Rehabilitation Unit subsequently. It was noted during his rehabilitation period that the alignment obtained in the ‘middle’ finger, after transposition of the ring finger, was unsatisfactory due to a shifting of the bone in the course of the revascularisation. The patient and the Workers' Compensation Board were advised that a secondary procedure was going to be required with bone grafting of the original fracture site along the secondary nerve grafting or repair. This surgery was indeed undertaken as anticipated on 28 October 1993 repairing the ulnar digital nerve of the middle finger. The wires inserted at the time of the secondary procedure in October were removed approximately 6 - 8 weeks later and the patient then commenced into a further upgraded rehabilitation. When last seen at Belmont in January, he had quite reasonable range of movement of the index and middle fingers although this was obviously nowhere near normal. The function of the hand remained considerably decreased because of this lack of movement and also because of lack of sensation.”
Mr Gilpin then expressed the following opinion and prognosis:
“Mr Hochmuth has had a severe injury to his hand which has caused him pain and suffering and also considerable distress. It will result in a permanent partial disability of the hand although his condition is not steady and stable at this point in time to accurately assess what degree this will be. It is obvious that, in view of the time taken for nerve recovery, a complete assessment would be unable to be made until roughly the 15 - 18 month mark after his original injury. It is probable, however, that it will be in the order of 30 - 40 per cent loss of hand function.
It is too early to say weather the patient will be able to make a successful return to his previous occupation but obviously there is a significant chance that he will be unable to re-adjust physically and psychologically to his work in the sawmill. It may be, however, that some work redeployment within the industry may be possible for him.”
Mr Gilpin concluded that report by saying that there was a possibility of arthritic problems arising in the MP joint of the middle finger which might later require surgery.
In Exhibit 14, which was prepared on 10 November 1994, Mr Gilpin expressed the following opinion and prognosis:
“This gentleman has had quite a severe injury to his hand and when last seen by me in July, he was approximately 12 months from the time of his injury. In terms of his condition and particularly pain and functional skills, his situation is not steady and stable and he would need to be re-assessed at roughly the 18 month mark following an injury. In that period of time it could be anticipated that some of the things such as sensitivity in the fingers would possibly improve.
It is obvious, due to the severity of his injuries that he will have a permanent partial disability here. He appears to be already back at work and coping by all accounts with this but I anticipate that there will be some restriction in his job capacity here and more importantly in his ability to undertake other manual jobs if he looks to change from his current employer at some stage in the future.
As far as further deterioration of function in his hand is concerned, there is certainly some evidence that he will have arthritis in the base of the middle finger in particular and this could certainly require some surgical treatment. There may be a place for inserting a joint replacement at some later stage and if that was indeed required, it would probably cost in the order of $2,000 - $2,500 in today's terms. There is no indication that anything such as this will be required in the foreseeable future.”
In a later report dated 6 September 1995 Mr Gilpin mentioned the possibility that the plaintiff might find neuroma pain over the metacarpal heads troublesome enough to warrant revision surgery. Mr Gilpin said in that report that if such surgery took place it would cost on current terms about $1,000 and that he would be off work for a period of three to four weeks.
The final report of Mr Gilpin's to which I wish to refer is Exhibit 16 dated 18 March 1996. It followed an examination on that same day and Mr Gilpin sets out in his report his findings so far as the plaintiff's forearm, wrist and hand are concerned. He offers the following opinion and prognosis:
“I do not see any reason to change my disability rating of 50 per cent loss of function of the hand. I think the big issue is his potential for employment and I believe that there is a significant chance that he will have reduced employment potential of account of his injuries and employer concern about the risk of re-injury.
As far as future surgeries go, I have commented previously about surgery for revision of the scar neuroma. In terms of the MCP joint of his middle finger, some further surgery either by way of joint replacement or joint arthrodesis could be undertaken. I think that this could be required in the next 10 - 15 years but could not provide a percentage estimate of the likelihood that this will be undertaken.
The cost of such procedure, if some sort of reconstructive surgery was undertaken, would be in the order of $2,000 - $3,000 including the cost of one night admission to hospital. He would require further rehabilitation after this and conceivably be unable to work for up to six weeks after his surgery.”
Another orthopaedic surgeon, Mr Gillett, has furnished reports. The first of those that I wish to refer to is Exhibit 17 written on 9 May 1994. He sets out in that report the plaintiff's current position, his symptoms and the impact of the injuries upon his daily life. I shall not quote those. He then expressed the following opinion:
“It is my opinion that as a result of a work related accident, that Jason Hochmuth has had pain and suffering due to traumatic amputation involving his left hand. The history of the saw injury is consistent with producing the damage. The treatment provided has enabled him to have a reconstructed hand but he still has been left with a major disability. The pain and suffering he describes is consistent with the effects of this accident. The ongoing treatment he has had over time is consistent with the effects of this accident. The psychological symptoms and depression he has had is consistent with the effects of this accident.
At present his disability relates to a person who has had an amputation of the little and ring fingers associated with the poor function of the reconstruction of the middle finger and his disability also takes into account the stiffness and loss of sensation and function of the index finger. His disability is such that he predominantly ends up being a right handed person and uses his left hand as a positioner of large objects in space but it has no great ability to perform fine tasks or strong gripping tasks.
Further treatment may be required to the middle finger and this would depend on whether he continues to develop ulna deviation of the middle finger. As the middle finger may reach a point where it becomes ‘useless’ to him, a formal amputation at the metacarpo-phalangeal level may be required. The likelihood of this occurring is not high in my opinion as is in the order of probably 30 per cent. The cost of such surgery at today's values would be in the order of $1,500. He would take approximately three weeks to recover from this procedure.
He may require further treatment in the form of psychological counselling to deal with his loss.
His prognosis in relation to the function of the hand is described as above. His ability to work will predominantly be that of a one armed person and his ability to perform tasks of daily life, sport and recreation again will be predominantly as a one armed person. The left arm function will be in relation to positioning things in space. He will not have great strength nor have fine motor control.
His ability to work as a diesel mechanic is lost by this accident. His ability to work as a saw mechanic is also lost by this accident. His long-term work prospects relate to being retrained and using machinery as a one armed person.
As a result of this accident, I believe he has been left with a permanent partial disability of 36 per cent loss of efficient function of his left upper limb.”
The other report I shall refer to from Mr Gillett is dated 18 March 1996 and is Exhibit 19. He says in that report:
“He has not made any further improvement since my previous report.”
I should interpolate there that the previous report is not the one I have quoted before but a further report which I have not referred to.
“He improved from my first report to the second report. Surgery to the middle finger could be considered but in general terms, I do not believe this will be required and he is best to maintain the finger as it is still of functional use to him.
As stated in my previous reports, I do not think in practical terms he will develop any significant degenerative arthritis to warrant any special treatment.
I believe he will not be able to work in the type of work he did in the past. I believe he will be able to work in the capacity of a forklift driver. However, he would be at risk in the open labour market because of this disability. He would need the type of job he is doing at present. In the open labour market he would not be able to undertake other multi skills within the industry. That is, he is precluded from heavy manual work or manual handling using his left hand.
He is able to work as a one-armed person, using the left arm as a stabiliser and propping device.”
As has been mentioned by the orthopaedic surgeons the plaintiff has had psychological and psychiatric sequelae.
A psychologist Trudi Leivesley has furnished a number of reports. I do not propose to refer to all of them but I shall quote from the last which is dated 19 March 1996. In that report Ms Leivesley says:
“1. (a) Mr Hochmuth's level of personal adjustment is such that he could be expected to cope adequately with those stressors usually associated with:--
- work;
- family relationships;
- general activities of daily living.
- (b)Mr Hochmuth's level of personal adjustment remains unchanged since the time of previous assessment.
2. (a) Whilst not indicated by objective assessment to be experiencing unusual anxiety Mr Hochmuth reports experiencing some ongoing difficulties including:--
- occasional accident related thoughts and images;
- an inability to use saws and mild discomfort when he watches others use the saw on which he was injured;
- concern he might have an accident and unwillingness to drive any distance.
- (b)I consider it reasonable to assume these changes are related to the accident and its sequelae.
- (c)Whilst, with time, these difficulties might further diminish I consider it reasonable to assume Mr Hochmuth will experience some ongoing sensitivity relating to these areas.
3. (a) From his report post accident physical restrictions continue to have an impact on Mr Hochmuth's daily life and:--
- prevent him from engaging in the full range of pre-accident leisure activities;
- prevent him from comfortably engaging in the full range of daily and household activities;
- restrict his occupational options.
- (b)Such changes can be expected to affect Mr Hochmuth's enjoyment of life.
- (c)Should his current position be terminated Mr Hochmuth could be expected to be concerned by occupational restrictions.
4. (a) Whilst his level of personal adjustment is adequate to meet daily demands Mr Hochmuth might still benefit from brief supportive counselling to assist him in further adjusting to his injury.
- (b)Whilst dependent upon his response 4 to 8 sessions might represent an appropriate intervention timeframe.
- (c)Should he elect to receive psychological intervention such counselling could be obtained for a cost of about $142 per hourly session.”
The psychiatric evidence comes from Dr Jenkins and he concludes his report, which is Exhibit 24 and dated 2 May 1995, as follows:
“In my opinion your client is describing a chronic Post Traumatic Stress Disorder which would be directly consequent upon the psychological trauma of his injury.
Post Traumatic Stress Disorder is a chronic illness and it therefore is not heuristic to talk in terms of a cure. The chronicity and the severity of the disorder may be increased where there is chronic physical injury.
I would rate the severity of your client's condition at this time as being in the moderate scale in that he is describing symptoms which are moderate but persistent. He sometimes is unable to distract himself from the distress which his symptoms are caused. This distress is apparent and his symptoms are noticeable to observers such as his wife.
There is a moderate interference with functions in everyday situation. There is a certain amount of family discord and some reduction in social contact. There is also some reduction in recreational activities.
In my opinion the PTSD does not interfere with his employability. Comment upon that would be required from specialists in the area of his injury.
In my opinion your client would benefit from further treatment.”
He then sets out the cost of such treatment and concludes:
“In conclusion, where prognosis is concerned, then your client has a chronic illness, the symptoms of which in my opinion could will be very considerably alleviated by appropriate treatment but he has been left permanently more vulnerable to stress and relapses of his condition particularly in the latter half of his life.”
As is apparent, I think, from the descriptions contained in the short extracts from those various reports, the plaintiff has indeed suffered a very significant injury in my view. He has suffered considerable pain which has continued over quite a long period. Of course, the pain was most intense in the early days of his treatment. He has had to live with the memory of that accident and he has suffered loss of sleep and nightmares, as I understand it, arising from this incident.
Exhibit 1 are photographs taken of his hand, I think, if I remember correctly at the time of his admission to Belmont Hospital. This is probably about a fortnight post accident. They demonstrate in graphic terms, it seems to me, the extent of the injury suffered by the plaintiff and one can readily understand and accept his description of his reaction to those injuries when he saw them. Of course, the injuries have improved and the appearance of the hand has improved enormously since that time, but it still, to my mind, constitutes a very real cosmetic injury so far as this plaintiff is concerned.
The plaintiff is obviously conscious of the disfigurement he has in his hand and will, particularly when mixing with strangers or when in a strange area, take steps to hide his hand. I think his reaction to the appearance of his hand is most reasonable. His wife has also described the effects, as she perceives it, anyway, of the accident upon him and I accept her evidence relating to those matters.
It is apparent from the various reports that have been put before me that the plaintiff may in the future have to undergo various forms of surgery and it would appear to be in his best interest for him to undertake psychiatric and psychological counselling. Whether he will undertake such counselling and whether he will, in fact, have any surgery is problematical.
What I propose to do is include in my assessment for pain and suffering and loss of amenities a small amount to cover the possibility that he may incur costs in the future by way of counselling and by way of further surgery.
Taking all these various factors into account, I have decided to assess his damages for pain and suffering and loss of amenities at $65,000. Bearing in mind the size of the payment made by the Workers' Compensation Board to him by way of permanent/partial disability compensation, I do not propose to award interest on any part of the pain and suffering.
The parties have been able to agree on many factors. Past economic loss is agreed at $18,724. I propose to allow interest on that sum in the sum of $1,230. That is a rounded-off figure. In calculating it, I have taken into account the Board's weekly payments, notionally recredited the tax deducted by the Board, and applied an interest rate of about 10 per cent from a period approximately half-way through the period during which the Board made weekly payments to the plaintiff.
Past care and assistance is agreed in the sum of $11,050, as is interest on that sum in the sum of $570. Future care and assistance is also agreed in the sum of $4,835. The various expenses incurred by the Board are agreed at $11,172.28 and the so-called Fox v Wood component is agreed at $2,724.25.
Travelling expenses are agreed in the sum of $6,040, as is interest on that sum of $906.
The parties are also agreed that the plaintiff should receive $500 to compensate him for past and future pharmaceutical expenses and also interest so far as past pharmaceutical expenses are concerned.
The evidence of the plaintiff is that he purchased a ride-on mower which he needed because of his injuries. His evidence is that he and his wife had intended to acquire such an item in any event but not at the time when it became necessary because of the injuries. It would appear that the purchase was accelerated probably by a couple of years. In the circumstances, I propose to allow $500, which seems to me to be a reasonable amount to compensate him having to outlay the capital sum earlier than he intended.
This leaves me with what has been the most contentious matter so far as this assessment is concerned, namely the question of future economic loss.
An occupational therapist, Lesley Stephenson, has furnished a report which is dated 20 March 1996. Again, I do not propose to quote in detail from the report but I shall read her summary:
“Mr Hochmuth had suffered a traumatic injury to the left hand as a result of a circular saw injury on 23 August 1993. He had subsequently had amputation of his middle and little finger and transposing of his ring finger to the stump of the little finger. He has scarring over the knuckle area of the ring and little finger knuckles. He has no pain in summer months unless the area is bumped. In winter he has pain in the middle finger. Mr Hochmuth used compensatory grips when using the left land including alternative pinch grip using the thumb and index. He grips larger items between his first web space. He has slight wastage of his left forearm. His main limitations include reduced lifting capacity and reduced ability to use the left hand for stabilising; for example when using tools.
In regard to employment, he is capable of continuing to work as a forklift driver or as a machinery operator in the log treatment area of the mill.
He had not planned to resume working as a diesel mechanic prior to his injury and would no longer suit this type of employment due to decreased capacity to use hand tools.
If he were to lose his position as a forklift driver in the sawmill he may find it difficult to procure similar work in his geographical location. Larger companies usually offer work as a forklift driver. Smaller companies may require the operator to perform labouring tasks involving heavy lifting in addition to the forklift driving. He is also capable of working as a machinery operator in a timber treatment plant.”
I largely accept the report of Ms Stephenson which was tendered by consent of the parties. The only qualifications I have are perhaps more matters of degree. Ms Stephenson opines that if the plaintiff were to lose his position as a forklift driver in the sawmill, he may find it difficult to procure similar work in the geographical location. For reasons which I shall set out, in my view that perhaps rather understates matters.
The exhibits put before me show that the plaintiff was, at the relevant time, working as a saw operator and if he was still so employed he would have gross weekly earnings of $453.40. He is now working in a slightly different capacity and earning $420.30 per week gross - that is Exhibit 32 - or $340.50 per week net - see Exhibit 30. The difference between those two gross weekly earnings is $33.10. Applying his average tax rate to that difference suggests that his present weekly loss resulting from the change of employment status is of the order of $26.82. That loss, if capitalised over 32 years, that is to age 60, using the five per cent tables would have a present value of approximately $21,500.
Perhaps I should also at this stage, more by way of an aside, say that I am satisfied the plaintiff has lost the ability to grow small crops, which he may have from time to time endeavoured to do had he not been injured. It seems apparent from the evidence before me that such activities might have produced a small return to him and his wife.
It seems to me - and I think this was common ground between counsel - that the plaintiff's loss, in so far as his impairment of his earning capacity is concerned, is significantly greater than the present differences between his present earnings and his likely earnings had he not been injured would suggest.
I have already referred to Ms Stephenson's report. It seems to me most unlikely if the plaintiff were to lose his present employment that he would be able to obtain employment in the Mundubbera area. Indeed, it seems to me he would have very real difficulties obtaining employment anywhere.
The plaintiff wishes to stay in the Mundubbera area. He comes from an established family in that area, a family which has a history almost amounting, it would seem, to a tradition, of working in the area. I have already referred to the fact the plaintiff was already living on part of a selection made by his great grandfather. He expects - and the evidence suggests this is a reasonable anticipation by him - that he and his brother will in time inherit that land.
His wife also appears to have strong ties to the Mundubbera area and she, of course, has what must be regarded as a good job in the area, being a bank manager at Mundubbera.
So far as the plaintiff's employment prospects in that area are concerned, there are a number of problems. It seems that employment opportunities in the area are largely limited to the defendant's mill, orchardists who are growing either citrus or perhaps grapes, property owners who run cattle, and perhaps the council. I accept the evidence of Mr Meyer and Mr Wallis that the plaintiff is really most unlikely to gain employment from an orchardist because of his disabilities. In any event, I observe that the orchards take on most of their employees as casual workers during the season, which seems to last from approximately March to September. The evidence also establishes that insofar as forklifts are used on orchards, they are rarely operated, at least in the Mundubbera area, by full-time forklift operators and those who operate them are required to perform other functions. Ms Stephenson, of course, touched upon this aspect in her report.
A large part of the defence case has been orientated towards persuading me that the plaintiff's employment with the defendant is secure. Mr Forbes gave evidence that so far as the defendant company is concerned, the plaintiff may retain his employment for so long as he wishes. Mr Forbes' evidence also suggests - and I accept - that the defendant company is doing well at the moment. It is riding the storm of the current downturn in the economy and in the industry. Mr Forbes seems confident that the current political climate will help the survival, if not increase the prosperity, of the native hardwood timber industry in this area.
The evidence of Mr Shield paints a less rosy picture. He points out a number of factors which are operating Australia wide to reduce the viability of native hardwood millers, particularly those in rural areas. He says - and it seems to me this must be so - that the amount of timber available from private sources is reducing significantly and that the quality of that timber is also decreasing significantly. Mr Shield, of course, is not as sanguine about the political climate as Mr Forbes would appear to be. Indeed, from past statements made by Mr Forbes, it would seem that if those whose political persuasions are perhaps encapsulated by the title Greens,